Com. v. Isadore, T. ( 2023 )

J-S28021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY WAYNE ISADORE :
:
Appellant : No. 86 WDA 2023
Appeal from the Judgment of Sentence Entered December 15, 2022
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000560-2021
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED: OCTOBER 23, 2023
Appellant, Terry Wayne Isadore, appeals from the December 15, 2022
judgment of sentence entered in the Court of Common Pleas of McKean
County that imposed an aggregate sentence of 45 to 90 days’ incarceration
and ordered Appellant to pay $1,375.00 in fines and $53.50 in costs of
prosecution. We affirm Appellant’s convictions but vacate, in part, the
judgment of sentence in accordance with this memorandum and remand this
case for further proceedings.
The record reveals that, on November 1, 2022, the trial court, at the
conclusion of a non-jury trial, convicted Appellant of: Count 1 – drivers
required to be licensed (summary offense); Count 2 – driving while operating
privilege is suspended or revoked – unrelated to driving under the influence
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* Former Justice specially assigned to the Superior Court.
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of alcohol or a controlled substance (“DUI”); Count 3 – required financial
responsibility – operation of a motor vehicle without required financial
responsibility (summary offense); Count 4 – registration and certificate of title
required – driving unregistered vehicle prohibited (summary offense); Count
5 – operation of vehicle without official certificate of inspection (summary
offense); Count 6 – turning movements and required signals (summary
offense); and Count 8 – driving while operating privilege is suspended or
revoked – DUI related.1 On December 15, 2022, the trial court sentenced
Appellant to an aggregate term of 45 to 90 days’ incarceration and ordered
Appellant to pay $1,375.00 in fines and $53.50 in costs of prosecution.2 This
appeal followed.3
Appellant raises the followings issues for our review:
[1.] Did the trial court err in concluding that [] Appellant violated
[] 75 Pa.C.S.A. § 1543[](b)(1)(i)?
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1 75 Pa.C.S.A. §§ 1501(a), 1543(a), 1786(f), 1301(a), 4703(a), 3334(a), and
1543(b)(1)(i), respectively. Appellant was charged with habitual offenders,
75 Pa.C.S.A. § 6503.1, at Count 7. On May 5, 2022, the trial court granted
the Commonwealth’s motion to withdraw Count 7.
2 On Count 8, the trial court imposed a sentence of 45 to 90 days’ incarceration
and ordered Appellant to pay $500.00 in fines. The trial court further ordered
that Appellant be automatically paroled upon expiration of the minimum
sentence unless the Commonwealth filed a timely objection. At Counts 1 to
6, the trial court ordered Appellant to pay fines in the amounts of $200.00,
$200.00, $300.00, $75.00, $50.00, and $50.00 respectively.
3 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
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[2.] Did the trial court err in finding [] Appellant guilty of both []
75 Pa.C.S.A. § 1501[] and 75 Pa.C.S.A. § 1543[,] and
[imposing a sentence on] both [convictions]?
[3.] Did the trial court err in finding [] Appellant guilty of both []
75 Pa.C.S.A. § 1543[(a)] and § 1543[(b)(1)(i),] and for
[imposing a sentence on] both [convictions]?
[4.] Did the trial court err in finding [] Appellant guilty of
violating [] 75 Pa.C.S.A. § 3334[(a)]?
Appellant’s Brief at 5 (extraneous capitalization omitted).4
Appellant’s first issue challenges the constitutionality of Section
1543(b)(1)(i) based upon the United States Supreme Court decision in
Birchfield v. North Dakota, 579 U.S. 438 (2016). Appellant’s Brief at
12-13. Appellant asserts that pursuant to Birchfield, Section 1543(b)(1)(i)
is unconstitutional because it “improperly criminalizes his earlier refusal to
submit to a warrantless blood draw.” Id.; see also Appellant’s Rule 1925(b)
Statement, 2/3/23, at ¶4.
“As the constitutionality of a statute presents a pure question of law,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa. Super. 2014), appeal
denied, 114 A.3d 416 (Pa. 2015). “A presumption exists that the General
Assembly does not intend to violate the Constitution of the United States or
of this Commonwealth when promulgating legislation.” Lawrence, 99 A.3d
at 118 (citation, original quotation marks, and brackets omitted). As such,
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4 For purpose of disposition, we reorganized Appellant’s issues.
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“acts passed by the General Assembly are strongly presumed to be
constitutional, including the manner in which they were passed.” Id. “Thus,
a statute will not be found unconstitutional unless it clearly, palpably, and
plainly violates the Constitution.” Id.Section 1543(b)(1)(i) of the Vehicle Code states that
A person who drives a motor vehicle on a highway or trafficway of
this Commonwealth at a time when the person's operating
privilege is suspended or revoked as a condition of acceptance of
Accelerated Rehabilitative Disposition for a violation of section
3802 (relating to [DUI]) or the former section 3731, because of a
violation of section 1547(b)(1) (relating to suspension for refusal)
or 3802 or former section 3731 or is suspended under section
1581 (relating to Driver's License Compact) for an offense
substantially similar to a violation of section 3802 or former
section 3731 shall, upon a first conviction, be guilty of a summary
offense and shall be sentenced to pay a fine of $500[.00] and to
undergo imprisonment for a period of not less than 60 days nor
more than 90 days.
75 Pa.C.S.A. § 1543(b)(1)(i). Section 1547(b)(1) of the Vehicle Code states
that “[i]f any person placed under arrest for a violation of [S]ection 3802
[(DUI)] is requested to submit to chemical testing and refuses to do so, the
testing shall not be conducted but upon notice by the police officer, the
[Pennsylvania Department of Transportation] shall suspend the operating
privilege of the person” for a period of 12 or 18 months.5 75 Pa.C.S.A.
§ 1547(b)(1)(i) and (ii).
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5 The term “chemical test or testing” is defined by the Vehicle Code as an
“analysis performed on a biological material, including but not limited to
breath, blood[,] or urine, to determine the identity or concentration[,] or
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Upon review, we discern no error in Appellant’s conviction under Section
1543(b)(1)(i) on the grounds that the statute is constitutionally infirm based
upon Birchfield. Rather, we find Appellant’s reliance on Birchfield, to be
misplaced.
In Birchfield, the United States Supreme Court addressed whether
implied consent laws, which required a motorist to submit to a chemical test
upon arrest for suspicion of DUI or face criminal punishment, i.e.,
incarceration or fines, violated Fourth Amendment protections against
unlawful searches and seizures under the United States Constitution.6
Birchfield, 579 U.S. at 444. First, the High Court, recognized a difference in
privacy protections afforded to breath tests verses blood tests, explaining that
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both[,] of particular constituents such as alcohol or controlled substances.”
75 Pa.C.S.A. § 102.
6 The Fourth Amendment provides,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. CONST. amend. IV.
The underlying premise of an implied consent law is that a motorist, by virtue
of driving on public roadways, was deemed to have consented to chemical
tests when there was sufficient reason to believe that the motorist was driving
while under the influence of alcohol or a controlled substance. See
Birchfield, 579 U.S. at 444.
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“[b]ecause breath tests are significantly less intrusive than blood tests and[,]
in most cases[,] amply serve law enforcement interests,” a breath test may,
consistent with the Constitution, be “administered as a search incident to a
lawful arrest for [DUI.]” Id. at 476. A warrant was not necessary before
administering a breath test as a search incident to a lawful arrest. Id.
Conversely, the High Court found blood tests to be “significantly more
intrusive” of a person’s privacy interests and, as such, absent consent or
exigent circumstances, law enforcement was required to first obtain a warrant
before subjecting a motorist to a blood test. Id.
Next, the High Court addressed the constitutionality of laws under which
a motorist was deemed to have impliedly consented to a blood test by virtue
of driving on public roadways. Under such statutes, motorists were subject
to compulsory, warrantless blood tests upon arrest and faced criminal
punishment for refusal. Id. at 476-478. In reaching its conclusion that
implied consent laws that imposed criminal penalties for refusing a blood test
were unconstitutional, the Birchfield Court reasoned that “motorists cannot
be deemed to have consented to submit to a blood test on pain of committing
a criminal offense.” Id. at 477. The High Court limited its holding in
Birchfield, however, to those implied consent laws which imposed criminal
penalties for refusal, noting that its holding in Birchfield should not be read
to cast doubt on its prior opinions which “referred approvingly to the general
concept of implied-consent laws that impose civil penalties and evidentiary
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consequences on motorists who refuse to comply” with requests for blood
tests. Id. at 476-477.
Here, Appellant violated Section 1543 and was subjected to criminal
punishment pursuant to that provision of the Vehicle Code because he
operated a motor vehicle while his operating privileges were suspended,
revoked, or cancelled, not because he refused to submit to a blood test, either
presently or on a prior occasion. In general, Section 1543 makes it a criminal
offense for a motorist to operate a motor vehicle when the motorist’s
operating privileges have been suspended, revoked, or cancelled. A motorist’s
operating privileges can be suspended or revoked for any number of reasons,
including, inter alia, the refusal to submit to a blood test upon arrest for DUI.
The criminal punishment applicable to a violation of Section 1543 depends on
the reason for the suspension, revocation, or cancellation of the motorist’s
operating privileges. For example, Section 1543(a) imposes a $200.00 fine
when a motorist operates a motor vehicle despite a suspension, revocation,
or cancellation of operating privileges resulting from non-DUI-related matters.
See 75 Pa.C.S.A. § 1543(a); compare 75 Pa.C.S.A. § 1543(b). On the other
hand, when the motorist operates a motor vehicle despite a suspension,
revocation, or cancellation of operating privileges resulting from DUI-related
matters, the motorist is subject to a punishment of a $500.00 fine and
incarceration of not less than 60 days nor more than 90 days. 75 Pa.C.S.A.
§ 1543(b)(1)(i). Thus, a plain-reading of Section 1543 reveals that operating
a motor vehicle while a motorist’s operating privileges are suspended,
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revoked, or cancelled triggers a violation of Section 1543, and the punishment
for a violation of Section 1543 differs depending upon the cause for the
suspension, revocation, or cancellation. Stated another way, Appellant’s
conviction of Section 1543 resulted from his operating a motor vehicle while
his operating privileges were suspended, and the punishment he received was
based upon the reason his operating privileges were suspended.
Birchfield held that implied consent to submit to a blood test was
constitutionally invalid when a motorist faced criminal punishment for refusal
to comply. Notwithstanding, the High Court in Birchfield expressed its
continued approval of implied consent laws that imposed civil penalties and
evidentiary consequences upon a motorist’s refusal to comply with a request
for blood testing. Appellant has not cited, and we are unaware of, any legal
authority which invalidates an implied consent scheme in which a blood test
refusal leads only to a suspension of operating privileges (but not criminal
punishment) and where, in turn, criminal punishment attaches to the
operation of a motor vehicle by a motorist whose driving privilege has been
suspended pursuant to a valid implied consent law. If a state can validly
suspend a driver’s operating privilege for refusal to submit to a blood test, it
can certainly punish an individual who refuses to comply with such a lawful
suspension. Therefore, Appellant’s challenge to his conviction of Section
1543(b)(1)(i) on the grounds the statute was constitutionally invalid pursuant
to Birchfield, is without merit.
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Appellant’s second and third issues challenge his convictions under
Section 1501, 1543(a), and 1543(b)(1)(i) and the corresponding sentences
that he received for each of these convictions. Appellant’s Brief at 9-12.
To the extent that Appellant challenges his convictions under Sections
1501, 1543(a), and 1543(b)(1)(i), we find this issue waived for failure to raise
a challenge to his convictions with the trial court.7, 8 See Pa.R.A.P. 302(a)
(stating, “[i]ssues not raised in the trial court are waived and cannot be raised
for the first time on appeal”); see also Commonwealth v. Hill, 238 A.3d
339, 408 (Pa. 2020) (finding waiver of challenges to convictions for failure to
raise the issues with the trial court).
Inasmuch as Appellant’s second and third issues challenge his judgment
of sentence on grounds that certain convictions should have merged for
sentencing purposes, such a claim implicates the legality of sentence for which
our standard and scope of review are well-settled. When presented with a
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7 Inasmuch as Appellant contends the trial court erred in convicting him of
multiple offenses arising from the same episode, this claim “is patently
frivolous.” Commonwealth v. Laing, 456 A.2d 204, 207 (Pa. Super. 1983)
It is well-established that an individual “may be charged, tried and found guilty
of several offenses for but one criminal act.” Id. (stating, “[i]ndeed
prosecutors generally offer the [fact-finder] a smorgasbord of offenses” upon
which to convict an accused (citation and original quotation marks omitted)).
8 Following his conviction, Appellant filed pro se a “post conviction motion” on
November 2, 2022. A review of this motion reveals that Appellant raised a
claim sounding in ineffective assistance of trial counsel rather than a challenge
to his convictions. As such, this motion did not preserve a challenge to his
convictions.
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challenge to the legality of a sentence, our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Quintua, 56 A.3d 399,
400 (Pa. Super. 2012), appeal denied, 70 A.3d 810 (Pa. 2013).
Appellant was convicted of the following pertinent offenses under the
Vehicle Code:
§ 1501. Drivers required to be licensed
(a) General rule.--No person, except those expressly exempted,
shall drive any motor vehicle upon a highway or public property
in this Commonwealth unless the person has a driver's license
valid under the provisions of this chapter. As used in this
subsection, the term “public property” includes, but is not limited
to, driveways and parking lots owned or leased by the
Commonwealth, a political subdivision or an agency or
instrumentality of either.
...
(d) Penalty.--Any person violating subsection (a) is guilty of a
summary offense and shall, upon conviction, be sentenced to pay
a fine of $200[.00], except that, if the person charged furnishes
satisfactory proof of having held a driver's license valid on the last
day of the preceding driver's license period and no more than one
year has elapsed from the last date for renewal, the fine shall be
$25[.00]. No person charged with violating subsection (a) [] shall
be convicted if the person produces at the office of the issuing
authority within 15 days of the violation:
(1) a driver's license valid in this Commonwealth at the time
of the violation; or
(2) if the driver's license is lost, stolen, destroyed or
illegible, evidence that the driver was licensed at the time
of the violation.
75 Pa.C.S.A. § 1501(a) and (d).
§ 1543. Driving while operating privilege is suspended or
revoked
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(a) Offense defined.--Except as provided in subsection (b), any
person who drives a motor vehicle on any highway or trafficway
of this Commonwealth after the commencement of a suspension,
revocation[,] or cancellation of the operating privilege and before
the operating privilege has been restored is guilty of a summary
offense and shall, upon conviction or adjudication of delinquency,
be sentenced to pay a fine of $200[.00].
(b) Certain offenses.--
(1) The following shall apply:
(i) A person who drives a motor vehicle on a highway
or trafficway of this Commonwealth at a time when
the person's operating privilege is suspended or
revoked as a condition of acceptance of Accelerated
Rehabilitative Disposition for a violation of section
3802 (relating to [DUI]) or the former section 3731,
because of a violation of section 1547(b)(1) (relating
to suspension for refusal) or 3802 or former section
3731 or is suspended under section 1581 (relating to
Driver's License Compact) for an offense substantially
similar to a violation of section 3802 or former section
3731 shall, upon a first conviction, be guilty of a
summary offense and shall be sentenced to pay a fine
of $500[.00] and to undergo imprisonment for a
period of not less than 60 days nor more than 90 days.
75 Pa.C.S.A. § 1543(a) and (b)(1)(i).
Whether offenses merge for sentencing purposes turns on Section 9765
of our Sentencing Code, which provides,
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the [trial]
court may sentence the defendant only on the higher graded
offense.
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42 Pa.C.S.A. § 9765. Thus, Section 9765 “prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833
(Pa. 2009). “If both crimes require proof of at least one element that the
other does not, then the sentences do not merge.” Commonwealth v. Allen,
856 A.2d 1251, 1253 (Pa. Super. 2004) (stating, the operative consideration
in a merger analysis is “whether the elements of the offenses are the same or
different”), relying on Commonwealth v. Anderson, 650 A.2d 20 (Pa.
1994).
Here, Appellant claims that the trial court erred in sentencing him
separately for his convictions under Section 1501 and Section 1543. We find
this claim to be without merit. Section 1501 requires the Commonwealth to
prove, inter alia, that Appellant operated his motor vehicle without a valid
driver’s license.9 75 Pa.C.S.A. § 1501. To convict Appellant under Section
1543(a), the Commonwealth was required to prove that Appellant operated
his motor vehicle “after the commencement of a suspension, revocation[,] or
cancellation of [his] operating privilege and before [his] operating privilege
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9 Section 102 of the Vehicle Code defines “driver’s license” as “[a] license or
permit to drive a motor vehicle issued under this title.” 75 Pa.C.S.A. § 102.
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[was restored.]”10 75 Pa.C.S.A. § 1543(a) (emphasis added). Section
1543(b)(1)(i) required the Commonwealth to prove that Appellant operated
his motor vehicle “at a time when [his] operating privilege [was] suspended
or revoked[.]” 75 Pa.C.S.A. § 1543(b)(1)(i) (emphasis added). Thus,
Sections 1501 and 1543(a) and (b)(1)(i) draw a distinction between driving
without a driver’s license and driving without operating privileges. Section
1501 proscribes driving without a valid credential, but at a time when the
operator has the right to seek one. Sections 1543(a) and 1543(b)(1)(i),
however, proscribe driving when the operator lacks both a privilege to drive
and the right to apply for or obtain a valid credential to operate a vehicle. As
such, Section 1501 requires an element (driving without a driver’s license) not
included in the elements necessary to support a conviction under Section
1543. Similarly, Section 1543 requires an element (driving without operating
privileges) not included in the elements necessary to support a conviction
under Section 1501. Therefore, we discern no error in the trial court’s
imposition of a separate sentence under Section 1501.
In addressing Appellant’s claim that the trial court erred in imposing
separate sentences for his convictions under Section 1543(a) and Section
1543(b)(1)(i), we agree. A conviction under Section 1543(a) is “indisputably
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10 Section 102 of the Vehicle Code defines “operating privilege” as “[t]he
privilege to apply for and obtain a license to use as well as the privilege to use
a vehicle on a highway as authorized in this title, but not a contract, property
right[,] or civil right.” 75 Pa.C.S.A. § 102.
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a lesser included offense of [Section 1543(b)(1)(i)].” See Commonwealth
v. Ball, 146 A.3d 755, 757 (Pa. 2016); see also Commonwealth v.
Cunningham, 551 A.2d 288, 290 (Pa. Super. 1988), appeal denied, 562 A.2d
318 (Pa. 1989). In other words, all of the elements necessary to establish a
conviction of Section 1543(a) are included in the elements necessary to prove
a conviction under Section 1543(b)(1)(i). See 75 Pa.C.S.A. § 1543(a);
compare 75 Pa.C.S.A. § 1543(b)(1)(i). As such, pursuant Section 9765,
Appellant’s conviction under Section 1543(a) should have merged with his
conviction under Section 1543(b)(1)(i) for sentencing purposes.
Consequently, the trial court erred in ordering Appellant to pay a fine of
$200.00 for his conviction of Section 1543(a). See Trial Court Opinion,
2/8/23, at 2 (acknowledging that Appellant’s conviction under Section 1543(a)
does merge for sentencing purposes and that the $200.00 fine should be
vacated).
Appellant’s final issue challenges his conviction under Section 3334(a)
of the Vehicle Code. It is unclear, upon review of Appellant’s Rule 1925(b)
statement, the grounds upon which Appellant lodges this challenge to his
conviction under Section 3334(a).11 To the extent that Appellant attacks the
sufficiency of the evidence, we concur with the trial court, and the record
supports, that Appellant waived a sufficiency claim for failure to specify the
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11 Appellant’s Rule 1925(b) frames the issue simply as: “The [trial c]ourt erred
in concluding that [Appellant] was guilty of violating [Section 3334(a)] (Count
6).” Appellant’s Rule 1925(b) Statement, 2/3/23, at ¶2.
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element or elements of the crime upon which the evidence was insufficient.
See Trial Court Opinion, 2/8/23, at 2; see also Commonwealth v. Rivera,
238 A.3d 482, 496 (Pa. Super. 2020) (stating, “in order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant's Rule
1925(b) statement must state with specificity the element or elements upon
which the appellant alleges that the evidence was insufficient” or the
sufficiency issue is waived (citation and brackets omitted)), appeal denied,
250 A.3d 1158 (Pa. 2021).
In his appellate brief, Appellant asserts “that he gave an appropriate
signal of his intention to turn – and the trial [c]ourt abused its discretion in
simply disregarding that evidence.” Appellant’s Brief at 10. Inasmuch as this
assertion raises a challenge that his conviction under Section 3334(a) is
contrary to the weight of the evidence, we find this issue waived for failure to
comply with Pennsylvania Rule of Criminal Procedure 607(A). See
Pa.R.Crim.P. 607(A) (stating that, “[a] claim that the verdict was against the
weight of the evidence shall be raised with the trial [court] in a motion for a
new trial [] orally, on the record, at any time before sentencing; [] by written
motion at any time before sentencing; or [] in a post-sentence motion”
(formatting modified)); see also Commonwealth v. Washington, 825 A.2d
1264, 1266 (Pa. Super. 2003) (stating that, a weight of the evidence claim is
waived when it is first raised on appeal rather than in compliance with Rule
607(A)).
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For the reasons expressed herein, we affirm Appellant’s convictions. We
vacate in part Appellant’s judgment of sentence to the extent that the trial
court ordered Appellant to pay a fine in the amount of $200.00 for his
conviction under Section 1543(a). Furthermore, we are constrained to vacate
in part Appellant’s judgment of sentence to the extent that the trial court
sentenced Appellant to a term of incarceration of 45 to 90 days, as this
sentence is illegal pursuant to Section 1543(b)(1)(i).12 Pursuant to Section
1543(b)(1)(i), a trial court is required to sentence a defendant for a conviction
thereunder “to undergo imprisonment for a period of not less than 60 days
nor more than 90 days.” 75 Pa.C.S.A. § 43(b)(1)(i). Because the trial court
in the case sub judice imposed a minimum term of incarceration that was less
than 60 days, Appellant’s sentence is illegal.
Convictions affirmed. Judgment of sentence affirmed, in part, and
vacated, in part, in accordance with this memorandum. Case remanded.
Jurisdiction relinquished.
Date: 10/23/2023
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12 This Court may raise and address sua sponte issues concerning an illegal
sentence. Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020.
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